Arrest without a Warrant in West Virginia

Volume 48 Issue 3 Issues 3 & 4 Article 3

June 1942

Arrest without a Warrant in West Virginia Arrest without a Warrant in West Virginia

Marlyn E. Lugar West Virginia University College of Law

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ARREST WITHOUT A WARRANT IN WEST VIRGINIA

MARLYN E. LUGARn*

T HIS study deals only with the right of private persons and peaceofficers, of their own accord, to make arrests without warrants

in order to bring actual or supposed criminals into their custodyfor the purpose of administering the law. It does not purport toconsider the manner in which these arrests are to be made, theplace or the time thereof, or the conduct of the actors after thearrests. The purpose is primarily to examine the holdings, as wellas the language, of the West Virginia cases dealing with this sub-ject; secondarily, to supplement these points which have been dis-cussed by our court with the opinions expressed by the AmericanLaw Institute;" and last, to observe any statutory changes.

" 'The right of personal liberty consists in the power oflocomotion, of changing situation, of moving one's person towhatsoever place one's own inclination may direct, without im-prisonment or restraint, unless by due process of law.' "'

Both the federal and state constitutions prohibit unreasonablesearch and seizure of persons as well as the issuance of warrantsexcept upon probable cause, supported by oath, particularlydescribing the person to be seized.3 These provisions have generallybeen regarded as having no effect on the right to arrest without awarrant, although legislative extensions of the common law rulesmay be restricted by other constitutional provisions.4 The WestVirginia statutory extensions do not seem to be questionable; there-fore, this discussion will be limited, first, to pointing out the com-mon law rules and, then, the statutory extensions.

FEL oNY.

At common law a private person is privileged to arrest withouta warrant if the other has committed a felony,' punishable at the

Assistant Professor of Law, West Virginia University.1 The Restatement is rapidly becoming accepted as the authoritative state-

ment of the common law; it has been cited by the West Virginia court forty-eight times. Goodrich, Proof of the Pudding (1941) 27 A. B. A. J. 771.

5 State v. Hatfield, 112 W. Va. 424, 427, 164 S. E. 518 (1932).S U. S. CoxsT. Amend. IV; W. VA. CONST. art. III, § 6.44 Am. Jun., Arrest § 23. The type of statute which might be questionable

is one giving a right to arrest without a warrant for a mere misdemeanor notcommitted in the officer's presence, id. at § 26.

"REsTATEMENT, ToaTs (1934) § 119(a).

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ARREST WITHOUT WARRANT IN W. VA.

time of the arrest," especially if he sees it committed;7 or if a felonyhas been committed and he reasonably suspects that the other hascommitted it," but under no circumstances (under neither a mis-take of law nor fact), can a private person justify such an arrestby himself, or by an officer at his instance, unless the felony hasactually been committed; 9 or if the other has attempted to commita felony in his presence and the arrest is made at once or uponfresh pursuit.10

Likewise, a peace officer is privileged to arrest another with-out a warrant if the other has committed a felony, 1 punishable atthe time of the arrest, 2 especially if he sees it committed 3 orknows through his senses that it is being committed in hispresence 4 or if he, upon reasonable grounds, believes that theother has committed a felony though it afterwards appears thatno felony was actually perpetrated;'r nevertheless, in State v.Day,16 our court held that, even though a felony has been com-mitted, a peace officer, who is mistaken as to the identity of theperson he endeavors to arrest and injures him, is liable on his bondeven though he has reasonable grounds for believing that personto be the felon and that it is necessary to shoot in order to prevent

6 Id. at comment f.7 See State v. Sutter, 71 W. Va. 371, 373, 76 S. E. 811, 43 L. R. A. (x. s.)

399 (1912).8 RESTATEMENT, TORTS § 119(b)."See Allen v. Lopinsky, 81 W. Va. 13, 15, 94 S. E. 369 (1917); RESTATE.-

MENT, TORTS § 119, comments h and i. The Restatement does not give himthis privilege even though an act has been committed and the actor reason-ably believes it to be a felony through a mistake of law or fact, and it makesno difference that the act is in fact a breach of the peace or a misdemeanor.Even though no felony had been committed, at common law an arrest might bemade by a private person taking part in a "hue and cry" against another.

10 RESTATEmENT, TORTS § 119(d). It will be noticed that this privilege isbroader than one to arrest for a breach of the peace, id. at 119(c) and commentp. "Fresh pursuit" is one promptly begun and continuously maintained, butthe continuity is not broken by temporary and unavoidable interruptions, id.at comment q.

11 Id. at § 121, referring to § 119(a).'v Id. at § 119, comment f.13 State v. Sutter, 71 W. Va. 371, 76 S. E. 811, 43 L. R. A. (N. s.) 399

(1912); State v. Hammond, 96 W. Va. 96, 122 S. E. 363 (1924).14 State v. Thomas, 105 W. Va. 346, 143 S. E. 88 (1928).'5 State v. Spangler, 120 W. Va. 72, 197 S. E. 360 (1938); see Allen v. Lopin-

sky, 81 W. Va. 13, 15, 94 S. E. 369 (1917), where he has reasonable grounds tobelieve the offense so committed was a felony though it was not; Marchuchi v.Norfolk & W. Ry., 81 W. Va. 548, 553, 94 S. B. 979 (1918); RESTATEMENT,TORTS § 121(a), referring to 119 (b), where a felony has been oommitted, andthe actor reasonably suspects that the other has committed it; id. at § 121(b),where no felony has been committed, but the officer reasonably suspects thata felony has been committed and that the other has committed it.

3 120 W. Va. 412, 198 S. E. 609 (1938).

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West Virginia Law Review, Vol. 48, Iss. 3 [1942], Art. 3


WEST VIRGINIA LAW QUARTERLY 209

an escape.' 7 Apparently no distinction is to be made betweencapital felonies and inferior felonies in the matter of arrest.18 Apeace officer has also the privilege to arrest without a warrantwhere the other has attempted to commit a felony in his presenceand the arrest is made at once or upon fresh pursuit.' 9 For a pastoffense lower than a felony, an officer cannot legally make anarrest without a warrant; a possible exception being a dangerousassault that may end in a felony, by th4 death of the injured per-son.2

"Reasonable grounds to believe" would seem to be more thanmere suspicion, that is, there must be a reasonable suspicion. Whatis sufficient to satisfy this test will depend upon the facts in eachcase. The American Law Institute names the following as im-portant factors to be considered in determining whether the sus-picion is sufficiently reasonable: (1) the nature of the crime in-volved, (2) the chance of escape of the one suspected, (3) the harmto others to be anticipated if he escapes, and (4) the harm to himif he is arrested ;" and states that it is a question for the court asto what constitutes a reasonable suspicion upon a given set offacts.:2 This question was before our court in State v. Spangler,'wherein it was held that the evidence was not sufficient to showthat the officer had reasonable grounds to believe that the other hadcommitted a felony, the evidence on this issue being very meager.Our court has often considered an analogous question with respectto whether the facts were sufficient to give an officer reasonablegrounds to suspect that an offense was being committed in hispresence; these cases will be discussed later.

Furthermore, not even a peace officer is protected who, how-ever reasonably, acts under a mistake of law, other than a mistakeas to the validity of a statute or ordinance, and as to the lattertype of mistake no opinion is expressed by the American Law In-stitute where the legislation is declared to be invalid subsequent tothe arrest.

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'17 Comment (1939) 45 W. VA. L. Q. 173.18 See Thompson v. Norfolk & W. Ry., 116 W. Va. 705, 711, 182 S. E. 880

(1935). The statement was made really with respect to the amount of forcewhich might be used in effecting an arrest.

10 REsTATE ENT, ToRTs § 121(b), referring to § 119(d). It will be noticedthat this privilege is broader than one to arrest for a breach of the peace, id.at § 119 (c) and comment p.

-o See State v. Gum, 68 W. Va. 105, 108, 69 S. E. 463 (1910).21 RESTATEmENT, ToaTs § 119, comment j.2-Id. at comment k.23120 W. Va. 72, 197 S. E. 360 (1938).-04 RESTATEMEN.T, TorTs § 121, comment i.

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A peace officer, designated to act only within a limited districtor to make arrests only for certain acts, has no greater privilegeoutside such district or for acts other than those named than hasa private person.2

'ISDEEANOR- BREACH OF THE PEACE.

At common law a private person or a peace officer is privilegedto arrest without a warrant one who in his presence is committinga breach of the peace or, having so committed a breach of the peace,he is reasonably believed by the actor to be about to renew it ;"although there is a dictum to the effect that a private person underno circumstances can justify such an arrest for a misdemeanor.17

However, not even a peace officer has authority to make such anarrest for a misdemeanor, even though committed in his presence,unless it involves a breach of the peace.2" But, attempts to com-mit felonies are at common law only misdemeanors,29 and forthis type both private persons and peace officers are privileged toarrest without warrants if committed in their presence, as pointedout above. Our court has extended the above rule as to a peaceofficer's authority to arrest without a warrant for a breach of thepeace committed in his presence to include also misdemeanors com-mitted in his presence which cannot be stopped or redressed with-out immediate arrest, 0 and the test applicable to this extensionseems to be whether the officer can or cannot later have the mis-demeanant arrested upon a warrant.2 ' Our court has also statedthis rule, as to a breach of the peace in the officer's presence, withthe following variations: a misdemeanor which amounts to abreich of the peace or which "may likely lead to a breach of thepeace;" '2 a misdemeanor where the offense was committed or "at-tempted" in his presence; 33 where "immediately before" the ar-restee was committing a breach of the peace.2 4 To create this privi-

-, Id. at § 121, comments a and c.-6Id. at § 121(a) and § 119(e).27 See Allen v. Lopinsky, 81 W. Va. 13, 15, 94 S. E. 369 (1917).-8 State v. Lutz, 85 W. Va. 330, 101 S. E. 434 (1919).29 CLARK & MARSnALL, CRMnES (4th ed. 1940) § 113.30 State v. Whitt, 96 W. Va. 268, 122 S. E. 742 (1924); State v. Dean, 98

W. Va. 88, 126 S. E. 411 (1925).31 State v. Dean, 98 W. Va. 88, 126 S. E. 411 (1925).32 State v. Whitt, 96 W. Va. 268, 275, 122 S. E. 742 (1924).3 State v. Spangler, 120 W. Va. 72, 78, 197 S. E. 360 (1938).

34 State v. Long, 88 W. Va. 669, 688, 108 W. Va. 279 (1921); of. State v.Stockton, 97 W. Va. 46, 51, 124 S. E. 509 (1924), the fact that the disturbanceof the peace had ceased at the time one orally appointed arrived to make thearrest could not nullify his appointment or affect his authority to make the

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WEST VIRGINIA LAW QUARTERLY

lege it is said not to be enough that either a private person or apeace officer reasonably suspects that the other is committing abreach of the peace, except where the other knowingly causes theactor to believe such facts exist, and if in fact no breach of thepeace has been committed, a mistaken belief whether induced bya mistake of law or of fact creates no privilege.35 However, ourcourt seems to approve a policy of permitting an arrest without awarrant by a peace officer where he has reasonable grounds to sus-pect that such an offense is being committed."

Of course, it is immaterial whether an officer has authorityto arrest for a misdemeanor not involving a breach of the peaceif he is only present with an officer who has such authority andmakes the arrest."

AN A1RAY.

The American Law Institute states that a peace officer is privi-leged to arrest another without a warrant where an affray is beingor has been committed in the officer's presence and he reasonablysuspects that the other is or has been participating therein and thearrest is made at once or on fresh pursuit.3 The principal dis-'tinction between such an arrest and one for a breach of the peaceseems to be that here the officer is protected where he acts under areasonable mistake as to the existence of facts; for example, apeace officer, coming upon the scene of a riotous affray, wouldunder this rule be privileged to arrest persons subsequently dis-covered to be bystanders who were taking no particular part in theaffray but were merely trying to force their way out of the mob."Our court seems never to have made any distinction between anaffray and a breach of the peace in this respect.

DECEPTivE ARRESt .

According to the American Law Institute either a privateperson or a peace officer is privileged to arrest another withouta warrant if the other knowingly causes the actor to believe that

arrest. Accord: Town of Hartford v. Davis, 107 W. Va. 693, 150 S. E. 141(1929), if the officer acts promptly, he may arrest without a warrant for abreach of the peace committed in his presence; otherwise, he must procure awarrant.

3s RESTATEmmT, ToaTs §119(e), comment o.3G State v. Koil, 103 W. Va. 19, 22, 136 S. E. 510 (1927) ; State v. Olivetti,

107 W. Va. 357, 361, 148 S. E. 205 (1929); State v. Fideity & Casualty Co.of N. Y., 120 W. Va. 593, 597, 199 S. E. 884 (1938).

37 See State v. 'Brown, 101 W. Va. 160, 164, 132 S. E. 366 (1926).38 RESTATmENT, ToRTs §121c.39 Id. at §121, illustration 7.

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facts exist which would create in him such a privilege to arrest."0

To create this privilege, though, the other must either intend hisconduct to induce the actor to believe in the existence of such factsor as a reasonable man should realize that his conduct creates asubstantial probability of inducing the other so to believe. 41 Ap-parently no case involving such facts has been considered by ourcourt with respect to the privilege to arrest.

IN THE PRESENCE OF THE ACTOR.

"In the presence of the actor" means that the actor by theuse of his senses knows that the other is committing the act whichconstitutes the breach of the peace or the attempt to commit afelony; the act need not be done in the actor's immediate neighbor-hood, but he must be aware of its commission by the use of one ormore of his senses, and upon innediate investigation find that itconstitutes an act for which he is privileged to arrest.42 Our courtholds that an offense is committed in the presence of an officerwhen he sees it with his eyes or sees some one or more of a series ofcontinuous acts which constitute the offense, 43 and is aided by hisother senses or by information as to the others.44 Another testsometimes applied by our court is that a crime is committed in thepresence of an officer when the facts and circumstances occurringwithin his observation, in connection with what under the circum-stances may be considered as common knowledge, give him probablecause to believe or reasonable grounds to suspect that such is thecase.4' The facts observed by the officer need not be through anyone of his senses -information coming to an officer through oneof his senses may indicate that an offense is being committed.46

40Id. at §119 and §121(a).41 Id. at §119, comment r.42Id. at §119, comment in.43 State v. Lutz, 85 W. Va. 330, 101 S. E. 434 (1919). This part of the

statement appears in the opinion of the case; whereas the complete statementappears in point nine of the syllabus, and the test as laid down in thesyllabus has been generally applied by the later cases.

44 State v. Lutz, 85 W. Va. 330, 101 S. E. 434 (1919) ; State v. Wills, 91W. Va. 659, 114 S. B. 261 (1922) ; State v. Stockton, 97 W. Va. 46, 124 S. E.509 (1924), a justice of the peace had been informed of a disturbance of thepeace and lie saw a portion, at least, of it; State v. Fidelity & Casualty Co.of N. Y., 120 W. Va. 593, 199 S. E. 884 (1938).

45 State v. Koil, 103 W. Va. 19, 136 S. E. 510 (1927), it is also stated inthis case that an offense takes place within the view of an officer where hissenses afford him knowledge that one is being committed; State v. Tatar, 108W. Va. 709, 152 S. E. 748 (1930); State v. 1idelity & C. Co. of N. Y., 120W. Va. 593, 199 S. B. 884 (1938).

40 State v. Thomas, 105 W. Va. 346, 143 S. E. 88 (1928) (sense of smellheld sufficient); State v. Olivetti, 107 W. Va. 357, 148 S. E. 205 (1929) (odor

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These tests are not broad enough to include merely observing afulness or bulge in the other's pocket as sufficient evidence of theconcealing of liquor on his person in the presence of the officer,' 7

nor merely seeing the other carrying a sack who, upon a commandto stop, replies, "You got me, Mike.' '48 Nor is an act of adulterycommitted in the officer's presence where he finds one with another'swife, both persons being fully dressed, and this one merely picksup his cap and leaves by a different door from the one the officerentered, his car being in the road on that side of the house.49

On the other hand, an offense is committed in an officer'spresence when he lawfully stops a car and his searchlight revealsan exposed jug, whereupon he inquires as to its contents and isinformed by the other that it is "moonshine liquor" - this ad-mission is sufficient to authorize the arrest?0 Likewise, the crimeis committed in the officer's presence if he lawfully stops an auto-mobile, whereupon an occupant throws something over the bankwhich is found to be a pistol.-' But, if, before the officer makesan arrest, he commits a trespass upon the other, by putting hishands on the other's pockets, thereby eliciting from him a con-fession that he has on him "three pints"; this is not the same as avoluntary disclosure, and the offense cannot be said to have beencommitted in his presence 2

Furthermore, where one is privileged to arrest without a war-rant for an offense committed in his presence, he cannot arrestmerely upon a suspicion that such offense is being committed inhis presence ;53 and it makes no difference that his suspicion is justi-fied, the offense having been committed actually in his presence, "4

which is disclosed by a search of the one arrested."

of liquor plus the other's appearance may be sufficient); see State v. Snod-grass, 91 W. Va. 553, 558, 114 S. E. 136 (1922) (information communicatedthrough any of his senses is proper matter of evidence).

47 State v. Tatar, 108 W. Va. 709, 152 S. E. 748 (1930); Note (1922) 20A. L. R. 652, deals with the transportation of concealed liquor.

48 State v. Koil, 103 W. Va. 19, 136 S. E. 510 (1927).49 Noce v. Ritchie, 109 W. Va. 391, 155 S. E. 127 (1930).50 State v. Brown, 101 W. Va. 160, 132 S. E. 366 (1926).51 State v. Hatfield, 112 W. Va. 424, 164 S. E. 518 (1932).52 State v. Lutz, 85 W. Va. 330, 101 S. E. 434 (1919).53 State v. Wills, 91 W. Va. 659, 114 S. E. 261 (1922); State v. Koil, 103

W. Va. 19, 136 S. E. 510 (1927).5 4 State v. Lutz, 85 W. Va. 330, 101 S. E. 434 (1919); State v. Wills, 91

IV. Va. 659, 114 S. E. 261 (1922); State v. Koil, 103 W. Va. 19, 136 S. E.510 (1927) ; State v. Tatar, 108 W. Va. 709, 152 S. E. 748 (1930).

55 State v. Wills, State v. Tatar, both sitpra n. 54; but see, Claiborne v.Chesapeake & 0. Ry., 46 W. Va. 363, 372, 33 S. E. 262 (1899), stating thatafter a razor was revealed by the search, it was the duty of the officer to de-tain him.

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BREACH OF THBE PEACE.

The "American Law Institute defines a breach of the peace asa public offense done by violence or one causing or likely to causean immediate disturbance of public order.50 The term is genericand has been said by our court to include "all violations of thepublic peace, order or decorum, such as to make an affray; threatento beat, wound or kill another, or commit violence against the per-son or property; contend with angry words to the disturbance ofthe peace; appear in a state of gross intoxication in a public place;recklessly flourish a loaded pistol in a public place while intoxi-cated; and the like.' "7

In State v. Steger,', our court held that the use of abusive,profane and insulting language, unaccompanied by threats andcausing no expectation or fear of personal violence, was not abreach of the peace. (Here the court was considering the suf-ficiency of an indictment for d breach of the peace at common law,and the Restatement provides that it is not conclusive so far as thelaw of arrest is concerned that a statute or court has for other pur-poses described particular conduct as a breach of the peace). Thistest of actual or threatened violence as an essential element was ap-proved in State v. Whitt,"9 but in State v. Dean,60 our court pointedout that this was not limited to personal' violence but might also beviolence to the public peace, order, decorum or repose, and approvedthe following definition:

" 'The term "breach of the peace" is generic, and includesall violations of the public peace or order or decorum; in otherwords, it signifies the offense of disturbing the public peace ortranquillity enjoyed by the citizens of a community. . . .Bypeace, as used in this connection, is meant the tranquillity en-joyed by the citizens of a municipality or a community wheregood order reigns.' "I"

Later our court said generally that the phrase includes every actof violence which tends to disturb that sense of security whichevery person feels necessary to his comfort and to secure whichthe government is instituted and maintained.02

56 RESTATEMENT, ToRTs §116.57 State v. Long, 88 W. Va. 669, 108 S. E. 279 (1921). See also, State v.

Clark, 64 W. Va. 625, 640, 6.3 S. E. 402 (1908) ; Marcluchi v. Norfolk & W. Ry.81 W. Va. 548, 553, 94 S. E. 979 (1918).

58 94 W. Va. 576, 119 S. E. 682, 34 A. L. R. 570 (1923).59 96 W. Va. 268, 276, 122 S. E. 742 (1924).60 98 W. Ila. 88, 92, 126;S. E. 411 (1925).a' Id. at 91.OUState v. Mills, 108 W. Va. 31, 35, 150 S. E. 142 (1929).

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The following acts have been considered by our court withreference to their being breaches of the peace. Stating to anotherthat, "By God... he didn't have to go away and... he couldn'tmake him go away," when the occurrence takes place on a publicroad, tends to a breach of the peace, the words being well calculatedto provoke a conflict and to bring about blows."' A breach of thepeace is committed where, prior to the time of an attempted ar-rest, one is intoxicated, is driving his car recklessly through thestreets, draws his pistol on the officer and threatens to shoot him,enters a store and throws out sample shoes, and immediately beforethe attempted arrest, curses the officer and calls him vile names ina loud and angry voice.0 4 One who ig not related to another aboutto be arrested by an officer for an offense, whether with or withouta warrant, commits a breach of the peace if he interferes to resistsuch arrest and commits an assault upon the officer when the oneabout to be arrested offers no resistance.6 An officer, who is in-formed of a disturbance of the peace, and upon arrival at the scenesees another with a stone in his hand running after a woman who isretreating from him, may arrest without a warrant for a breach ofthe peace." But, simple larceny is not a breach of the peace unlesscommitted under circumstances which might immediately lead toa breach of the peace.6 One who is unlawfully gambling andplaying a certain game of chance for money with cards, commonlycalled "poker", is not committing a breach of the peace if thepublic is not in any way disturbed thereby. 8

PEACE OFFICERS' STATUTORY AND C O0N LAW PRIVILEGES.

Having referred to the common-law rules with respect to theprivileges of private persons and peace officers to arrest otherswithout warrants, the more generally applicable statutes will bereviewed in connection with an examination of the West Virginiacases dealing with the privileges of certain designated officers. Thisspecial treatment is undertaken because there is no general statuteapplicable to all officers with respect to the right to arrest without

63 State v. Clark, 64 W. Va. 625, 640, 63 S. E. 402 (1908). Accord: Mar-chuchi v. Norfolk & W. Ry., 81 W. Va. 548, 552, 94 S. E. 979 (1918) ; cf. Statev. Gum, 68 W. Va. 105, 69 S. E. 463 (1910), wherein similar language wasused toward an officer in the other's home and where the language was par-tially provoked by the officer-the arrest was held unlawful.

64 State v. Long, 88 W. Va. 669A 683, 108 S. E. 279 (1921).05 State v. Best, 91 W. Va. 559, 113 S. E. 919 (1922).66 State v. Stockton, 97 W. Va. 46, 50, 124 S. B. 509 (1924).67 State v. Whitt, 96 W. Va. 268, 276, 122 S. E. 742 (1924).68 State v. Dean, 98 W. Va. 88, 92, 126 S. E. 411 (1925).

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a warrant and because there may be some question at common lawas to who are peace officers. Furthermore, no West Virginia casehas been found specifically holding that a private person has anysuch right; therefore, our cases are more important from the view-point of the privileges of different officers. Since the rights withrespect to arrests for felonies have not often been considered byour court and since the rules mentioned above are rather wellestablished with respect thereto, the following study will be largelylimited to lesser offenses.

The American Law Institute defines a peace officer as a persondesignated by a public authority, by appointment or election, whoseduty it is to keep the peace and arrest persons guilty or suspectedof crime, and does not attempt to state who are peace officers."In England under the common law, sheriffs, justices of the peace,coroners, constables, and watchmen were entrusted with specialpowers as conservators of the peace.70

STATE TRooPERs.

"The superintendent and each of the officers and membersof the department of public safety are hereby authorized andempowered as follows:

"(a) ...when a witness to the perpetration of any of-fense or crime, or to the violation of any law of this State, orof the United States, may arrest without warrant....

"(d) . . . and shall exercise all of the powers conferredby law upon a sheriff, constable, or any other peace officer ofthis State .... ,71

This statute broadens the privilege of arrest without a warrantto any offense or crime or to the violation of any law of this state,but even here it may only be exercised when the offense is wit-nessed by such officers (usually referred to as state troopers).They cannot without a warrant lawfully arrest another on meresuspicion that he is committing a misdemeanor in their presence ;72

but if they are aware, by the use of any of their senses, of the com-mission of a prime they may investigate and arrest without a war-

69RESTATEMENT, ToRTs (1934) §114.70 4 Am. JuR., Arrest §24.71 W. VA. CODE (Michie, 1937) c. 15, art. 2, §11. This statute also provides

that under certain circumstances citizens and other officers shall be consideredmembers of the department of public safety.

72 State v. Wills, 91 W. Va. 659, 114 S. E. 261 (1922).

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rant," even though the offense is a misdemeanor not involving abreach of the peace. 74

This statute also authorizes these officers "to arrest and detainany and all persons suspected of the commission of any felony ormisdemeanor whenever complaint is made and a warrant is issuedthereon for such arrest. '"" This would seem to be merely de-claratory of the common law and should not be construed as pre-venting an arrest without a warrant for a felony, not committedin their presence, if they upon reasonable grounds believe that theother has committed a felony, though it afterwards appears thatno felony was actually perpetrated; especially since the part of thestatute first quoted above gives them all the powers conferred bylaw upon any peace officer of this state.7

The statute contains no extension of the right to arrest withouta warrant for an offense of a lesser grade than a felony not com-mitted in the officer's presence. Generally our court has appliedthe same tests to determine when a state trooper is "a witness"to an offense as it has applied to determine whether an offense iscommitted "in the presence of" a peace officer, without expresslystating that the same rules apply.77

SnxRIFFS AND DUPUTY SERiFFs.

Our court recognizes that sheriffs and deputy sheriffs are con-servators of the peace or peace officers,"' and that as such they havethe common law privilege to arrest without a warrant for mis-demeanors committed in their presence but only if the acts amountto breaches of the peace or are likely to lead thereto, or are such ascannot be stopped or redressed without immediate arrest 79-thiswould seem to include such arrests to prevent the commission ofbreaches of the peace.8 0 Their power to arrest for other types ofmisdemeanors without warrants has not been extended generally by

73 State v. Thomas, 105 W. Va. 346, 143 S. E. 88 (1928) ; State v. Olivetti,107 W. Va. 357, 148 S. E. 205 (1929).

74 State v. Brown, 101 W. Va. 160, 132 S. E. 366 (1926); see State v.Whitt, 96 W. Va. 268, 275, 122 S. E. 742 (1924).

75W. VA. CODE (Michie, 1937) c. 15, art. 2, §11.78 Spra n. 15 contains the West Virginia cases on this point as to peace

officers, but no West Virginia case involving state troopers has been found.77 Foil example, in State v. Thomas, and State v. Olivetti, both supra n. 73,

the court relied upon earlier West Virginia cases in which the question waswhether any offense had been committed in, the officer's presence.

78 State v. Whitt, 96 W. Va. 268, 274, 122 S. E. 742 (1924) ; State v. Dean,98 W". Va. 88, 91, 126 S. E. 411 (1925) ; State v. Koil, 103 W. Va. 19, 22, 136S. E. 510 (1927).

70 State v. Whitt,, State v. Dean, both supra n. 7880 See State v. Whitt, 96 W. Va. 268, 277, 122 S. E. 742 (1924).

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218 ARREST WITHOUT WARRANT IN W. VA.

statute, but neither has their power to arrest in this manner per-sons whom they upon reasonable grounds believe to have committedfelonies been taken away by statute.

JUSTICES OF THE PEACE AND CONSTABLES.

Under our constitution justices of the peace and constablesare conservators of the peace throughout the county.8' By statutewhere an offense of which a justice of the peace has jurisdictionis committed in his presence, or in that of a constable, either mayforthwith apprehend the offender or cause him to be apprehended,and in such case he may be tried without a warrant.8 2 Anotherstatute gives a constable the power to arrest without a warrant anyperson who, in his presence and within his county, shall "make anaffray, or threaten to beat, wound or kill another, or to commitviolence against his person or property; or contend with angrywords to the disturbance of the, peace; or improperly or indecentlyexpose his person; or appear in a state of gross intoxication in apublic place.'' In State v. Lutz,s4 our court, in referring to thislatter statute, said that it amounts to little if anything more thanan affirmance of the common law, unless the three classes ofoffenses lastly mentioned constitute exceptions ;s' while it was recog-nized that the former statute authorizes justices and constables toarrest without a warrant for misdemeanors, other than those in-volving breaches of the peace, when committed in their presenceif the justice has jurisdiction of the offenses8s These statutes donot seem to take away these officers' common law right to arrest asconservators of the peace without a warrant for felonies ;s7 how-ever, it must be remembered that our court has held a constableliable on his bond who wounded an innocent person through a mis-take as to identity even though he had reasonable grounds for be-

81 W. VA. CONST. art. VIII, §28 and art. IX, §7.82 W. VA. CODE (Mlichie, 1937) c. 50, art. 18, §2. Section I of this article

specifies generally the offenses over which a justice has jurisdiction, althoughother sections of the code give him jurisdiction over other offenses. See Statev. Fidelity & Casualty Co. of N. Y., 120 W. Va. 593, 597, 199 S. E. 884 (1938),wherein the court cites section 2, for the statement that a constable has theright to make an arrest for a misdemeanor committed in his presence.SSW. VA. CODE (Mlichie,. 1937) c. 62, art. 10, §6.84 85 W. Va. 330, 341, 101 S. E. 434 (1919).85But see State v. Clark, 64 W. Va. 625, 638, 63 S. E. 402 (1908), the

court felt that contending with angry words to the disturbance of the peacemight also be a breach of the peace.s See also, State v. Whitt, 96 W. Va. 268, 275, 122 S. E. 742 (1924).87 State v. Sutter, 71 W. Va. 371, 76 S. E. 811 (1912), wherein a coui-

stable saw a felony committed; see State v. Emsweller, 78 W. Va. 214, 224, 88S. E. 787 (1916), wherein the court said an arrest might be without a war-

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lieving that such person was the felon and that it was necessary toshoot in order to prevent an escape.55 Clearly, a constable cannotlegally arrest without a warrant for a misdemeanor not committedin his presence.89

MmUNcn'Ar1 OFFICERS.

The leading case in West Virginia as to municipal police of-ficers' right to arrest without a warrant is State v. Lutz,90 whereinour court, finding no statute changing, affirmed the common lawrule that such an officer could not legally arrest without a warrantfor a misdemeanor even though committed in his presence unlessit involved a breach of the peace. In this case the officer attemptingto make the arrest was the chief of police of a city organized undera charter which did not specify any powers for this officer, andthe city had not attempted to give him any additional power toarrest without. a warrant; further, the court held that a generalstatute making it the duty of municipal police to enforce the pro-hibition law, independently of any ordinance, conferred no addi-tional authority since it might. be eomplied with, without resortingto arrest without a warrant. This latter statute is similar to ourpresent statute making it the duty of the mayor and the police ofa municipality to aid in the enforcement of the criminal laws ofthe state and to arrest any offender.9'

In this case the only provision in the general law applicableto municipal corporations"2 referred to as a possible basis forbroadening the power to arrest was one similar to our presentstatute"2 authorizing the town council to appoint when necessary

rant if a justice has jurisdiction of the offense committed in his presence or aconstable's presence; otherwise there must be a warrant- on the facts onlya misdemeanor was involved and it had not been committed in the presenceof either.

s8 State v. Day, 120 W. Va. 412, 198 S. E. 609 (1938).89 Noce v. Ritchie, 109 W. Va. 391, 155 S. E. 127' (1930).90 85 W. Va- 330, 101 S. E. 434 (1919).91 W. VA. CODE (M ihie, 1937) c. 8, art. 4, §25.92W. VA. CODE (Mcihie, 1937) e. 8, sets forth generally the powers of

municipal corporations and their officers; art. 1, §2 thereof specifying that,except as otherwise provided in the code or by special charter, all municipalcorporations may exercise the powers conferred by this chapter although theyare not conferred by their charters, and that so far as this chapter conferspower on municipal authorities, not conferred by the charters thereof, thischapter constitutes an amendment to said charters, and also containing an-other provision whereby municipal corporations may adopt the provisions ofthis chapter where inconsistent with their charters. W. Va. CODE (Michie, 1937)c. 8A, dealing with the powers of municipalities under "home rule", will notbe considered since the writer does not know of any municipality which hasyet taken advantage of this plan.

93 W. VA. CODE, (Michie, 1937) c. 8, art. 4, §10.

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a police force to assist the sergeant in the discharge of his duties -the court'said that the council might under this statute enlarge thechief of police's power, but the question was not decided. How-ever, there was another statute, apparently not called to the at-tention of the court, in effect at that time,94 and in force today,0 'providing that "the sergeant shall have all the powers, rights andprivileges within the corporate limits of the town in regard to thearrest of persons .... that can legally be exercised by a constableof a district within the same.'' ° In State v. Gum,97 a town sergeantwas apparently held not to have the same privilege to arrest as aconstable, although the court in this case again did not considerthe statute last quoted, which was in effect at that time also."'Nevertheless, the wording of this statute would seem to give thetown sergeant the privilege to arrest without a warrant, not onlyfor those misdemeanors involving a breach of the peace but alsofor all those over which a justice has jurisdiction, if committed inthe sergeant's presence, since we have seen that a constable hasthis privilege.99 Whether officers designated under special chartershave this additional privilege would depend upon a constructionof that particular charter as read in connection with the statutesgenerally applicable to the powers of municipality authorities.100

Our court has expressly held that municipal police officers,irrespective of town ordinances, have the authority under the com-mon law to make arrests, without warrants, for misdemeanorscommitted in their presence which are breaches of the peace;""

94 W. VA. CopE (Barnes, 1917) c. 47, §35.95 W. VA. CoDE (Miehie, 1937) e. 8, art. 4, §5.9G 1bid.9T 68 W. Va. 105, 69 S. E. 463 (1910); but see Claiborne v. Chesapeake &

0. Ry. Co., 64 W. Va. 363, 369, 33 S. E. 262 (1899), to the effect that a policeis a constable within the corporate limits, with the same powers in criminalcases.

98W. VA. CODE (1906) c. 47, §35.99 Supra n. 82.100 Supra n. 92.101 State v. Long, 88 W. Va. 669, 108 S. E. 279 (1921); State v. Best, 91

W. Va. 559, 113 S. E. 919 (1922); dicta to the effect that they may legallyarrest without a warrant for a inisdemeanor committed in their presence inAllen v. Lopinsky, 81 W. Va. 13, 15, 94 S. E. 369 (1917) (night watchman ofa town); also for an offense committed in their presence in Mount v. Quinlan,104 W. Va. 118, 120, 139 S. E. 474 (1927) (a policeman arrests for violationof a town ordinance against driving while intoxicated). In State v. Best, 91W. Va. 559, 113 S. E. 919 (1922), the first arrest without a warrant was forloitering in violation of a city ordinance, but the court did not decide itslegality. In Claiborne v. Chesapeake & 0. Ry., 64 W. Va. 363, 369, 33 S. E.262 (1899), the court said they may arrest any person they know to be guiltyof an offense against the laws of the state, until a proper warrant can beissued.

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and in State v. Spangler,11" the general rule that a peace officer may,without a warrant, arrest any person who, he, upon reasonablegrounds, believes has committed a felony, was applied to a townsergeant.

CONSERVATORS OF THE PEACE.

Some of the officers already mentioned are expressly namedas conservators of the peace by statute or by the constitution;others are so classified, some being given special powers as con-servators of the peace. For example, the president of the countycourt'0 3 and commissioners of accounts' are so named, as wellas is a notary who as such is given by the statute all the powersconferred upon justices of the peace.10 5 What power has a con-servator of the peace, to arrest without a warrant ?

Our court has frequently stated that the common law rulesof arrest without a warrant by an officer apply to those who haveauthority to conserve the peace, 0 6 or who are conservators of thepeace.10 7 In Marcauchi v. Norfolk and Western Railway Co., °10referring to conductors named by statute to exercise the powersof conservators of the peace, the court held that they might arrestfor breaches of the peace in their presence, stating that conservatorsare persons who have this duty and that this implies the right tointervene and intercept without the delay incidental to the pro-curement of a warrant; and in Howell v. Wysor,0 9 the courtconstrued the above statute applicable to notaries as giving themthe powers anciently exercised by the common law officers." Noneof the cases in which these statements as to conservators were madeinvolved arrests by officers other than those which have alreadybeen dealt with specifically.

OTHER STATUTORY PROVISIONS.

Space permits only an examination of the statutes alreadymentioned dealing generally with the right to arrest without awarrant. However, there are other statutes which confer this privi-

102 120 W. Va. 72, 197 S. E. 360 (1938). See also, Allen v. Lopinsky, 81W. Va. 13, 15, 94 S. E. 369 (1917) (night watchman).

103 W. VA. CoNsT. art. IX, §7.104W. VA. CODE (MIichie, 1937) c. 44, art. 3, § 2.101 Id. at c. 29, art. 4, §4.06l State v. Spangler, 120 W. Va. 72, 77, 197 S. E. 360 (1938).

107 State v. Whitt, State v. Dean, both supra n. 78; of. State v. Stockton,97 W. Va. 46, 50, 124 S. E. 509 (1924).

108 81 W. Va. 548, 94 S. E. 979 (1918).169 74 W. Va. 589, 82 S. E. 503, Ann. Cas. 1916C 519 (1914).110 Id. at 593.

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lege upon certain persons for special purposes. No attempt willbe made to enumerate all of these, but a few have been summarizedbelow to illustrate the extent to which our legislature has gone.111

FUGITIVE FROm ANO'THER STATE.

In George v. Norfolk & Western Ry.,112 the second point of thesyllabus states that "an offense committed in one state does notjustify arrest of the perpetrator thereof in another, otherwise thanupon a warrant for his arrest as a fugitive from justice." Theoffense involved in this case, if any, was a misdemeanor committedin West Virginia, and the arrest was made without a warrant inVirginia. It will be remembered also that, for offenses of a lessergrade than a felony, the act must have been committed in theactor's presence before he may legally arrest without a warrant.However, in State v. Spangler,"3 our court expressly overruledthe above statement "to the extent that it applies to an arrest fora felony, when such arrest is based upon reasonable grounds' ".114

ill Within the town a mayor is a conservator of the peace and exercises allthe powers vested by law in a justice of the peace, with certain exceptionsas to civil cases; and it is his duty to see that the good order of the town ispreserved, and to this end he may cause the arrest and detention of all riotousand disorderly persons in the town before issuing his warrant therefor, W.VA. CODE (Michie, 1937) c. 8, art. 4, §3. Game protectors may arrest on sightwithout a warrant any person detected by them violating any law relating togame animals, fish, frogs, wild birds and fowls, and forests, id. at c. 20, art. 2,§3. The state commissioner of agriculture, the consulting veterinarians andtheir duly appointed and authorized assistants or employees have the samepowers as other peace officers of this state, id. at c. 19, art. 9, §5. If aconstable, policeman, town sergeant, sheriff or his deputy, finds any personunder the age of twenty-one years violating the statute as to smoking orpossessing a cigarette or cigarette paper, who refuses to tell where he obtainedthe same, it is his duty to arrest such person and take him before a justice,W VA. CODE (Michie, 1937) c. 16, art. 9, §6.

The following statutes also pertain to the right to arrest: W. VA. CODE(Michie, 1937) c. 3, art. 5, §27 (commissioner of election to preserve order) ;c. 3, art. 5, §26 (illegal voters); c. 27, art. 4, §10 (inmate escaping from statehospital); c. 28, art. 1, §8 (youth escaping from industrial school); C. 28, art.3, §13 (girl escaping from industrial school); c. 50, art. 12, § 2 (order of ajustice for contempt) ; c. 56, art. 3, §18 (to assist officer executing any processto overcome resistance) ; c. 60, art. 3, §24 (employee of the liquor commissionas to certain acts); c. 61, art. 3, §41 (conductor, flagman or brakeman as aconservator of the peace, and special police officers for railroads appointed bythe governor as conservators of the peace with the powers conferred uponconstables) ; c. 61, art. 5, § 12 (fugitives from any state benevolent, penal orcorrectional institution); c. 61, art. 5, § 14 (assisting an officer in a criminalcase) ; c. 61, art. 5, § 15 (assisting a justice in a criminal case); c. 61, art. 6,§1 (judges and justices suppressing unlawful assemblages); c. 62, art. 10, §8(person appointed by a justice to assist in keeping the peace during the timeof a fair).

11278 W. Va. 345, 88 S. E. 1036 (1916).11s 120 W. Va. 72, 197 S. E. 360 (1938).114 Id. at 78.

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The American Law Institute accepts this view, stating further thatwhether it is a felony is to be determined by the law of the state inwhich the act is committed and that the arrest need not be re-quested by the public authorities of that state."5 The Institutemakes a special note that the word "fugitive" is not only used inits normal sense of a person who is fleeing from the state in orderto avoid arrest therein, but is also applied to a person who hasfor any purpose come into the state in which the arrest is made.116

Attention is also called to two acts passed by our legislaturein 1937. The Uniform Criminal Extradition Act"7 provides thatthe arrest of a person may be lawfully made by any peace officeror a private person, without a warrant, upon reasonable in-formation that the accused stands charged in the courts of a statewith a crime punishable by death or by imprisonment for a termexceeding one year, but when exercising this privilege such actormust after the arrest follow the procedure set forth in the statute."'The Uniform Act on Fresh Pursuit"'9 provides that any member ofa duly organized state, county or municipal peace unit of anotherstate who enters this state in fresh pursuit, and continues withinthis state in such fresh pursuit, of a person in order to arrest himon the ground that he is believevd to have committed a felony insuch other state, has the same authority to arrest such person, ashas any member of such a unit of this state to arrest a person on

the ground that he is believed to have committed a felony in thisstate.'2 0 "Fresh pursuit" includes fresh pursuit as defined by thecommon law, and it is specifically provided that it does not neces-sarily imply instant pursuit, but pursuit without unreasonable de-lay.

121

PROSECUTION AFTER UNLAVFUL ARREST.

In conclusion, it is recognized that many questions arise afterit is determined that an arrest without a warrant is illegal, suchas, the right of the person arrested to recover damages therefor, orsuch person's right to resist the arrest and the amount of force

that he may use, or the admissibility of evidence secured upon such

115 RESTATEFENT, TORTS §119, comment e.116 Ibid.117W. VA. CODE (Michie, 1937) e. 5, art. 1, §§7-13.11s Id. at §9 (e). §9 (i) of this statute provides that when a prisoner de-

faults on his bond, it shall be ordered that he be immediately arrested withouta warrant if he be within this state.

119 W. VA. CODE (ITIchie, 1937) e. 62, art. 11.12 Id. at §1.121 Id. at §5.

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an arrest. It is not the purpose of this study to consider thesequestions generally, but one of these should be mentioned; namely,whether an unlawful arrest will render invalid the judicial proceed-ings in the course of which the arrest was made.

The American Law Institute does not consider this questionin its Restatement of the Law of Torts,12 2 but as a general rule themere fact that the arrest of an accused person is unlawful is ofitself no bar to a prosecution on a subsequent indictment, by whichthe court acquires jurisdiction over the person of the defendant. 123

In State v. Siwdgrass,124 the record disclosed that the defendantwas tried before a justice upon a warrant, issued upon a propercomplaint and apparently before he was tried and convicted. Thecourt held that, even assuming the defendant's arrest without awarrant was unlawful, this would not discharge him from prose-cution for the offense, nor would it justify his discharge from cus-tody after a proper warrant had been issued and he had been heldunder that warrant. The same view has been expressed in otherWest Virginia cases.12 Likewise, the court's power to try a caseupon a proper warrant or indictment subsequently issued or foundis not impaired by the manner in which the accused is broughtwithin the jurisdiction of the court; even though he is unlawfullyarrested in an adjoining state and forcibly conveyed into this stateagainst his will and consent. 2 '

On this question, however, the case of Town of Hartford v.Davis2 7 must be considered. The defendant was charged with"reckless" driving in the warrant under which the prosecutionwas made. The warrant was held to be fatally defective; and thecourt refused to accept the contention, that it might be disregarded

1- RESTATEMENT, TOrTS §118, comment a.123 Note (1928) 56 A. L. R. 260.124 91 . Va. 553, 114 S. E. 136 (1922).12s State v. Sutter, 71 W. Va. 371, 373, 76 S. E. 811 (1912) ; State v. Hender-

son, 103 W. Va. 361, 366, 137 S. E. 749 (1927); State v. McClung, 104 W. Va.330, 333, 140 S. E. 55, 56 A. L. R. 257 (1927); State v. Warner, 111 W. Va.694, 696, 163 S. E. 419 (1932).

126 State v. McAninch, 95 W. Va. 362, 121 S. E. 161 (1924). Accord:State v. Sisler, 11 S. E. (2d) 534 (W. Va. 1940). See Mount v. Quinlan, 104W. Va. 118, 120, 139 S. E. 474 (1927) wherein, upon an application forhabeas corpus, the court approved a statement to the effect that, upon collateralattack of a judgment under which a prisoner is held, any irregularity inmaking the arrest is immaterial and quoted: " 'After final judgment of con-viction, the jurisdiction of the court cannot be questioned by an inquiry intothe manner in which the accused was brought before it; and this is true eventhough the prisoner had been kidnapped and forcibly brought before the courtfrom a foreign jurisdiction.' "

127 107 W. Va. 693, 150 S. E. 141 (1929).

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since the offense was committed in the presence of the officer whomade the arrest, for the reason that the arrest was not madepromptly, several days having apparently passed, and thereforewas illegal without a warrant. This case may be distinguished inthat here a valid warrant was necessary to the jurisdiction of themayor, since the defendant did not waive this requirement andsince it was not dispensed with by a valid arrest for an offensecommitted in the officer's presence.

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Arrest without a Warrant in West Virginia

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